With New Jersey battling the nation’s second-highest COVID-19 infection rate, Gov. Phil Murphy signed a sweeping legislative package on April 14, 2020 offering legal protections to the health care workers and organizations that are on the front lines. Amid calls for retired doctors and nurses to return to the health care workforce to address a shortage of trained providers, the state faces shortages in hospital bed “surge capacity,” as well as a scarcity of ventilators and other supplies necessary to fight the pandemic. The new law comes on the heels of similar April 1, 2020 executive order enacted as a temporary measure while the New Jersey Senate and General Assembly ironed out a final bill.

Retroactive to March 9, 2020, the law (S-2333/A-3910) offers expansive coverage, despite beginning with a statement of legislative intent that attempts to dispel the notion that the bill “grant[s] immunity to all medical doctors and healthcare workers in New Jersey for all inpatient or outpatient procedures or any medical treatment rendered during the timeframe of the COVID-19 emergency[.]” (Emphasis added). It covers all aspects of COVID-19 treatment and care by almost any person in the health care workforce, health care facility or health system, regardless of their ordinary focus during non-emergency times. The Legislature directly states after qualifying its intentions that, “[t]he enactment of this bill is to ensure that there are no impediments to providing medical treatment related to the COVID-2019 emergency and that all medical personnel supporting the COVID-19 response are granted immunity.” The new law does not, however, apply to care and procedures performed by health care professionals unrelated to the COVID-19 emergency, and the Legislature provides examples of services falling outside the coverage of the statute, including, but not limited to OB/GYN services and orthopedic procedures.

The new law is summarized as follows:

Medical professionals (including a broad category of doctors, nurses, EMTs and diagnostic technicians), along with the facilities and health systems that they work for, “shall not be liable for civil damages for injury or death alleged to have been sustained as a result of an act or omission . . . in the course of providing medical services in support of the State’s response to the outbreak of coronavirus disease[.]”

The sweeping civil immunity granted under the new law also extends to acts and omissions “undertaken in good faith” by providers and the facilities and health systems that employ them to support the COVID-19 relief effort that would otherwise fall outside the scope of the provider’s license, except if such acts and omissions otherwise constitute “a crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct[.]”

Civil immunity does not only apply to COVID-19 care in a traditional, in person clinical setting, but also to care provided through telemedicine and other technologically driven methods of care being utilized extensively during this crisis due to social distancing measures aimed at curbing the spread of the virus.

The law insulates health care workers and the facilities and health systems that employ them from both civil and criminal liability for deaths or injuries sustained as a consequence of decisions about the allocation of mechanical ventilators or what the law calls “other scarce medical resources” that are in limited supply and high demand during a public health emergency. However, the immunity is only applicable if the facility or health system adopts and adheres to a “scarce critical resource allocation policy.”

Guidelines for the creation of scarce critical resource allocation policies were previously promulgated by New Jersey Department of Health Commissioner Judith M. Perscichilli, RN, BSN, MA on April 11, 2020 . (A copy of that set of guidelines can be found here on the New Jersey Department of Health’s website). The state of New Jersey has adopted what has become known as the “University of Pittsburgh Model Policy,” which was created after a decade-long research project at the University.

The immunities granted pursuant to the statute extend until the state of emergency and public health emergency declarations by the governor are rescinded.

As is the case in a number of contexts involving the prospect of criminal, civil and regulatory liability, taking full advantage of this new law requires careful consideration and adoption of formal, written institutional policies and procedures. The careful implementation of a scarce critical resource allocation policy, even amid a global pandemic, is required in order to take advantage of the full reach of the law. Like in any heavily regulated environment, clearly drafted policies and procedures present the best line of defense for health care providers.

Although the new law was passed with near unanimous consent of the New Jersey Legislature, it is not without its critics. At least one New Jersey state senator has suggested publicly that the law’s provision of civil immunity for health care workers practicing outside the scope of their license might go too far. Typical of emergency legislation, only time will tell whether this portion of the statute is ultimately tested in the courts. For now, it appears that even a dentist working on the front lines to battle COVID-19 related illness would be cloaked with immunity despite working outside the ordinary scope of his or her licensure.

New Jersey is not alone in extending these types of immunities. New York, the state with the most total COVID-19 cases and deaths in the U.S., included similar civil and criminal immunities in its “Emergency Disaster Treatment Protection Act,” which was enacted as part of a recent budget measure signed into law by New York Gov. Andrew Cuomo. As has been the case with much of the regional COVID-19 response in the New York/New Jersey metropolitan area, the New York and New Jersey bills employ strikingly similar language. Undoubtedly, as other states begin to feel the brunt of the worldwide COVID-19 pandemic in the way New York and New Jersey have, it is likely they will take enact similar protections by both legislative action and executive order.

The seasoned practitioners in Fox Rothschild LLP’s White Collar Criminal Defense & Regulatory Compliance practice group are adept at navigating the lines of defense necessary to protect health care workers, health care facilities and health systems, including in the exigent circumstances of a crisis such as the COVID-19 pandemic. They are ready to serve those who are serving all of us during this fight against a devastating disease.

Matthew S. Adams, Esq. is a partner with Fox Rothschild LLP in Morristown, N.J. and co-chair of the firm’s White Collar Criminal Defense & Regulatory Compliance practice group. He frequently defends health care providers in connection with a wide array of criminal, civil and regulatory matters across the country.